Trafficking and the UK s approach to prevention and victim protection through the National referral Mechanism

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1 Trafficking and the UK s approach to prevention and victim protection through the National referral Mechanism Definitions of Trafficking and Smuggling 1. The internationally accepted definitions derive from the United Nations Convention against Transnational Organized Crime and its three protocols. 2. The Organised Crime Convention was adopted by General Assembly resolution 55/25 of 15 November 2000and entered into force on 29 September The Convention is supplemented by three Protocols: the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; the Protocol against the Smuggling of Migrants by Land, Sea and Air; and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition. States that ratify the Convention commit themselves to taking a series of measures against transnational organized crime, including the creation of domestic criminal offences, the adoption of frameworks for extradition, mutual legal assistance and law enforcement cooperation; and the promotion of training and technical assistance for building or upgrading the necessary capacity of national authorities. To comply with these obligations the UK implemented laws to prohibit trafficking of human beings, and introduced legislation such as the Sexual Offences Act 2004, which made trafficking a criminal offence and the Gangmaster Licensing Act. 3. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children entered into force on 25 December This is the Palermo Protocol which at article 3 defines trafficking as: (a) Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; 4. The Protocol against the Smuggling of Migrants by Land, Sea and Air, adopted by General Assembly resolution 55/25 came into force on 28 January Article 3 of the Migrants protocol defines people smuggling as: 1 P a g e

2 (a) Smuggling of migrants shall mean the procurement, in order to obtain, directly or (b) indirectly, a financial or other material benefit, of the illegal entry of a person into a (c) State Party of which the person is not a national or a permanent resident. (See UNODC s online Toolkit to combat trafficking in persons from 2008 which breaks down and distinguishes the offences.) 5. Trafficking breaks down into 3 elements: - The act (what is done) Recruitment, transportation, transfer, harbouring or receipt of persons - The means (how it is done) Threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim - The purpose (why it is done) For the purpose of exploitation, which includes exploiting the prostitution of others, sexual exploitation, forced labour, slavery or similar practices and the removal of organs. 6. Note there is no requirement for the purpose to have been achieved so a person who escapes or is rescued before exploitation has taken place may still be a victim of trafficking. Note also that article 3b) of the protocol specifically states that use of any of these means negates any presumed consent by the trafficked person. Children cannot give informed consent so it is unnecessary to consider the means used if the trafficked person is a child. 7. Smuggling also breaks down into 3 elements: - Procuring the illegal entry of another person - Into another State - For the purpose of financial or material gain 8. The key differences are: o Consent - Smuggled migrants usually consent to being smuggled 2 P a g e

3 o Crossing borders - Smuggling involves illegal border crossing and entry into another country. Trafficking does not necessarily involve crossing a border and victims may cross borders legally o Exploitation - Traffickers generate money from the ongoing exploitation of the victim. Smugglers generate money from facilitating the movement and illegal entry. The transaction ends there. Council of Europe Convention on Action against trafficking in human beings 9. The United Kingdom ratified the Council of Europe Convention on Action against Human Trafficking on 17 December 2008 and the Convention came into force in the UK on 1 April The purposes of the Convention as described in article 1 are: (a) a to prevent and combat trafficking in human beings, while guaranteeing gender equality; (b) b to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution; (c) c to promote international cooperation on action against trafficking in human beings. 11. The explanatory notes to the Convention state that The Council of Europe Convention, while taking the Palermo Protocol as a starting point and taking into account other international legal instruments, whether universal or regional, relevant to combating trafficking in human beings, seeks to strengthen the protection afforded by those instruments and to raise the standards which they lay down. The ratification of the Council of Europe Convention required further measures particularly relating to victim identification and protection to be introduced. UKBA states on its website that the UK was largely compliant with the Convention prior to ratification and only made a limited number of legislative, policy and procedural changes to enhance arrangements, some of which go beyond the Convention s requirements. 12. The drafters and signatories to the Convention envisaged a multi-agency cooperative approach to combating trafficking with an extremely high emphasis on victim protection and assistance, including provisions on compensating victims of trafficking. Key obligations of the Convention 13. The principal obligations in terms of victim protection are: 3 P a g e

4 Their identification, and once identified a commitment that a victim should not be removed from the territory until the identification is complete (article 10) Assistance for victims (article 12) A reflection and recovery period during the two stages of the identification process (article 13) Residence permits in specified circumstances for identified victims of trafficking (article 14) Legal assistance and compensation for victims (article 15) Identification as envisaged by article Article 4 defines a victim as any natural person who is subject to trafficking in human beings as defined in this article. Article 10 states: (a) Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention. (b) Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. 15. The explanatory notes amplify the role of the competent authority and stress the need to work cooperatively to identify victims. The notes emphasize that failure to identify a victim will probably mean that a victim is deprived of fundamental rights By competent authority is meant the public authorities which may have contact with trafficking victims, such as the police, the labour inspectorate, customs, the immigration authorities and embassies or consulates. It is essential that these have people capable of identifying victims and channelling them towards the organisations and services who can assist them The Convention does not require that the competent authorities have specialists in human-trafficking matters but it does require that they have trained, qualified people so that victims can be identified. The Convention likewise requires that the authorities collaborate with one another and with organisations that have a support-providing role. The support organisations 4 P a g e

5 could be non-governmental organisations (NGOs) tasked with providing aid and support to victims. Article 12 assistance and support 16. This envisages safe and appropriate accommodation, access to emergency medical treatment, counselling and information about legal rights, adoption of legislative and other measures to assist social, physical and psychological recovery. 17. Note it states that assistance to victims should not be conditional on his or her willingness to act as a witness. Article 13 Reflection and recovery period 18. The convention specifies a minimum of 30 days during which the person can seek advice and make an informed decision about cooperating with the authorities. During this time they cannot be removed from the territory. The explanatory notes to the Convention 1 show that this reflection and recovery period was specifically designed to protect illegal entrants from being removed from the territory before their case has been fully investigated, before they have had a chance to recover from their situation or consider cooperation with the authorities. 19. Note that the UK government has granted a 45 day reflection and recovery period. which can be extended on request. Article 15 compensation and legal redress 20. This provides for free legal aid for victims and the right to compensation. 21. Note that this may take the form of action in the Employment Tribunal for unpaid wages and unlawful deductions, for compensation for criminal injury and actions in tort for compensation for loss and injury. (Anti-Slavery and Eaves have produced useful publications on this) National Referral Mechanism 22. In the UK the identification of victims of trafficking occurs in a two stage process conducted through the National Referral Mechanism for victims of trafficking. 1 Extract from Explanatory Notes to the Convention Article 13 is intended to apply to victims of trafficking in human beings who are illegally present in a Party s territory or who are legally resident with a short-term residence permit Article 13(1) accordingly introduces a recovery and reflection period for illegally present victims during which they are not to be removed from the Party s territory. The Convention contains a provision requiring Parties to provide in their internal law for this period to last at least 30 days.. One of the purposes of this period is to allow victims to recover and escape the influence of traffickers. Victims recovery implies, for example, healing of the wounds and recovery from the physical assault which they have suffered. That also implies that they have recovered a minimum of psychological stability. Paragraph 3 of Article 13, allows Parties not to observe this period if grounds of public order prevent it or if it is found that victim status is being claimed improperly Other purpose of this period is to allow victims to come to a decision on cooperating with the competent authorities. By this is meant that victims must decide whether they will cooperate with the law-enforcement authorities in a prosecution of the traffickers. From that standpoint, the period is likely to make the victim a better witness: statements from victims wishing to give evidence to the authorities may well be unreliable if they are still in a state of shock from their ordeal. 5 P a g e

6 23. A full description of the operation of the National Referral Mechanism (NRM) for victims of trafficking (VoTs) can be found on UKBA s website. There is APG guidance entitled Guidance for Competent Authorities and Guidance for Frontline Staff. In essence, the system envisages that VoTs will be identified or come to the attention of first responders who if they think that there are indicators of trafficking in an individual s case and the individual consents to referral, can refer the individual s case to the competent authority who will carry out the identification process. The referral is made on the referral form which lists indicators of trafficking to assist the first responder. First responders 24. Referrals to the CA can only be made by a first responder, which is limited to the police, local authorities and certain NGOs such as Kalayaan. Solicitors and legal representatives cannot make a referral to a CA and an individual cannot self refer, other than by presenting themselves at the Asylum Screening Unit and hoping that they are identified as a victim of trafficking. This effectively limits the routes by which a PVoT can be referred to the NRM. Unless they are able to access the services of an NGO who can refer their case, they must either identify themselves to the police if an adult, or to social services if a child. Competent authority 25. The competent authority is UK Border Agency where there are immigration and asylum issues to be considered and UK Human Trafficking Centre (UKHTC) where this is not a concern, eg for EEA nationals. Local authorities in practice make referrals to UKHTC which then refers on to UKBA. There are competent authorities in each local immigration team in UKBA and trafficking team leaders. Reasonable grounds decisions 26. The competent authority (CA) has 5 days from the receipt of the referral to reach a decision on whether there are reasonable grounds to believe the individual is a potential victim of trafficking (PVoT). UKBA Asylum Process guidance states that : Having received a referral, a Competent Authority shall apply a reasonable grounds test to decide whether a person is a victim of trafficking. The reasonable grounds test has a low threshold. The test that should be applied is whether the statement I suspect but cannot prove would be true and whether a reasonable person would be of the opinion that, having regard to the information in the mind of the decision maker, there were reasonable grounds to believe the individual concerned had been trafficked. 27. The guidance previously stated that the reasonable grounds test has a low threshold and is lower than the threshold required for prima facie evidence (which is legally sufficient evidence, that if contested, would establish a fact or raise a presumption of a fact). 6 P a g e

7 28. Note the threshold of the test, which is lower than the balance of probabilities, lower than the asylum/human rights standard of proof and does not require facts to be established. 29. The 5 day reasonable grounds decision, if positive will trigger a 45 day reflection and recovery period. During this time, the applicant is effectively on temporary admission. The CA should continue its investigation and complete its inquiries into whether there are conclusive grounds to believe the individual is a victim of trafficking. The purpose of the recovery and reflection period is to enable the VoT to access the support and assistance necessary to escape and recover from the trafficking situation and also to take an informed decision on whether to cooperate with the authorities. The reflection and recovery period can be extended for further enquiries and is akin to temporary admission. Conclusive grounds decision 30. A conclusive grounds decision will be issued at the end of the reflection and recovery period. UKBA guidance states: Interviews by UKBA At the conclusive decision stage, CAs should consider whether, on the balance of probability, there is sufficient information to conclude that the individual is a victim of trafficking. Balance of probabilities essentially means trafficking as defined by the Convention is more likely than not to have happened. Decision makers should be satisfied that on the evidence available, the event is more likely to have happened than not. This standard of proof does not require the decision maker to be certain that the event did occur. 31. The timing of interviews with the trafficking victim can create conflict. Caseworkers frequently make the point that the reflection and recovery period is a time for consideration of options and conducting interviews during that period is premature and inappropriate. The APG states that: The CA should consider the need to interview the person. It may be the case that the information submitted on the individual s situation is so compelling that an interview is not necessary. Alternatively the information provided may be slim or contradictory, in which case an interview may help to clarify things. The Competent Authority should balance the benefits of an interview against the potential detriment it could cause and should be particularly mindful that it may re-traumatise the individual. In all circumstances Competent Authorities should attempt to gather all available information before deciding to interview and 7 P a g e

8 should not normally conduct an NRM interview during the first 30 days of the recovery and reflection period, unless there are strong reasons why this would be appropriate. 32. However UKBA also states that where an applicant has made an asylum claim they should be interviewed as early as possible about their claim in line with asylum process timescales. The Asylum Process Guidance and the NRM route map indicate that the asylum process and NRM are intended to co-exist and run in parallel. Trafficking victims who have also made an asylum claim are likely to be interviewed about their asylum claim before a trafficking decision has been issued. Representations that trafficking victims should not be interviewed about their asylum claim during the 45 day reflection period have not generally been successful. In practice, where a PVoT has claimed asylum, asylum interviews are being used to assess the trafficking case, which means firstly that RG decisions are not being made within the 5 day period, secondly that asylum interviews whose purpose is to assess an individual s prospective risk of persecution and prospective need for international protection are being used to assess the credibility of an individual s account of past persecution and trafficking, and thirdly that the individual will have no chance to benefit from the reflection and recovery period which would be the result of a positive 5 day decision. 33. The guidance used to state - and now implies that there is only a requirement to interview trafficking victims where the reasonable grounds decision will be negative. Conflict of interest 34. The designation of UKBA and UKHTC as the competent authorities that is the only authorities able to make decisions that there are reasonable grounds or conclusive reasons to believe that an individual has been trafficked creates obvious difficulties. Most victims of trafficking will either be illegal entrants or overstayers and there are clear conflicts for UKBA in recognising the rights of apparent immigration offenders. There are further conflicts when a single competent authority conducts one interview with the applicant which will form the basis of identification as a victim of trafficking (a decision which examines past persecution) as well as refugee status recognition (a decision which looks at prospective risk of future persecution). The standards of proof in the decisions are different and the burden of proof differs. The APG clearly states that victims of trafficking may have difficulty disclosing their experiences and may distrust the authorities and weight must be attached to the evidence provided by other bodies. Asylum applicants bear the burden of proving their case. In practice the decisions and the processes are conflated by UKBA. 35. UKBA s answer to this is to introduce a second pair of eyes in trafficking decisions. Assessing a claim s credibility inevitably involves an element of subjectivity on the decision maker s part. The danger is that a decision maker s subjective interpretation of a claim can lead to unfounded assumptions based not on objective information but on the individual s own experiences and beliefs, undermining the balance and fairness of an assessment. To 8 P a g e

9 ensure impartiality a second case worker should review the NRM decision and that second case worker should not be directly involved in the case s asylum decision. 36. Note that the Convention and its explanatory notes envisage that there will be a group of competent authorities involved in the identification process and not a single UKBA caseowner. Duty to investigate 37. The Convention in article 10 and its explanatory notes as detailed above, envisages cooperation between the various authorities who encounter victims of trafficking to identify and protect victims. UKBA policy guidance also specifies cooperation with other agencies. The following are extracts from the APG: It is important that decision makers collaborate with all relevant agencies that have dealings with the potential victim in order to gather all the relevant information. It may also be beneficial for the Competent Authority to discuss a case with the police in order to gather additional information to help with the RG decision Where an individual is being treated by the police as a potential victim and/or witness, decision makers should ensure lines of communication with the Senior Investigating Officer (police) are kept open. Although police and intelligence reports can provide objective evidence to strengthen a claim, due weight should also be given to the reports and views of local authority children s services or the organisation supporting an individual who may have spent most time with the potential victim and established a degree of trust. The CA should also take into account any medical reports submitted, particularly those from qualified health practitioners. In some cases an initial referral may contain insufficient evidence. The Competent Authority should proactively seek out information that could prove useful in establishing if there are reasonable grounds. The Competent Authority should discuss the case with the relevant agencies and establish plans to gather more information, including via interview. The reasonable grounds decision has consequences for the person in terms of protection and potential further stay in the UK. It may be subject to external scrutiny and judicial review. The decision should be of the highest possible standard, taking into account the expert views of those surrounding the individual. Where the decision maker is not sure they should seek guidance and assistance from others and commission more information from the first responder or support provider. 9 P a g e

10 Children 38. Children are subject to a very wide range of exploitation in trafficking sexual exploitation, domestic servitude, forced labour, begging, street crime (pickpocketing/ DVD selling), cannabis cultivation, benefit fraud and so on. The provisions for the identification of child victims of trafficking are similar but with some added protections. Children may not give informed consent so are assumed to have been deceived, coerced etc into being moved or harboured for the purpose of exploitation. The APG is clear that where there are reasons to believe a child has been trafficked, police MUST be informed. There is no requirement that children should consent to referral to the NRM (adults must consent to be referred) but as legal representatives, obtaining a child s consent would be good practice. The Council of Europe Convention requires that a guardian should be appointed for child victims of trafficking. We have not achieved that in England but the Scottish Refugee Council has been running a separated children s guardianship programme for asylum-seeking children which has achieved very positive results. ( ons/122) 39. The s55 obligation to promote and safeguard the welfare of children and the UN Convention on the Rights of the Child obligation to act in the best interests of the child apply to trafficking decisions and the treatment of children during the victim identification process. 40. Several social services departments in England (eg Hillingdon) responded to research that child victims of trafficking went missing from supported accommodation and now place them with foster carers until they are The Trafficking Convention defines a child as anyone under the age of 18 and specifies at article 10 that: (a) 3 When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall be presumed to be a child and shall be accorded special protection measures pending verification of his/her age. 42. This is a kinder test than UKBA s test which is that, where age is disputed, a Merton compliant age assessment will be required as evidence of age, but unless the appellant s appearance strongly suggests they are significantly over the age of 18, they should be treated as a child pending assessment. The NRM however states that: In cases where a potential victim s age is disputed competent authorities should follow standard UKBA policy on assessing age Historical victims of trafficking 10 P a g e

11 43. Although UKBA has recognised in its policy guidance that VoTs by definition will only be identified as victims of trafficking once they are out of their exploitation situation, they have taken the view in their recent decision-making that once a victim has been removed from their exploitation for a few months and there has been a break in the chain of causation between the exploitation and the application for identification, that they may no longer require the protection of the CoE Convention and are therefore no longer victims of trafficking. Many decisions fail to take account of the long term physical and psychological effects of having been trafficked and forced into exploitation. Many challenges to these types of decisions have been brought in the High Court but to date, there have been no judgments on the definition of victim or the reach of the protection offered by the CoE Convention. Reports from counsellors, psychologists, medical practitioners, NGO keyworkers and so on are required to support challenges to these types of decisions. Importance of early identification 44. Currently where a PVoT has claimed asylum, they are unlikely to receive a RG decision before their asylum decision and are unlikely to be interviewed in relation to their trafficking experience prior to their asylum interview. A major argument in favour of victim identification prior to the asylum process is the existence of the Detained Fast track (DFT). 45. The APG for frontline staff states: DFT Cases: If the PVoT has claimed asylum and meets the requirements for Detained Fast Track (DFT) then the Officer/FR should follow existing asylum routing procedures for making referrals to the Asylum Intake Unit (AIU). If they are suitable for detention, the DFT CA will deal with the trafficking referral. 46. Your case will be suitable for the DFT if in UKBA s view, it is one which can be decided quickly, and in their view, most asylum cases may be decided quickly. 47. The DFT suitability criteria state that you are not suitable for the DFT in: Cases where it is foreseeable that further enquiries (whether by the UK Border Agency or the applicant) are necessary to obtain clarificatory or corroborative evidence, without which a fair and sustainable decision could not be made, where those enquiries cannot foreseeably be concluded to allow a decision to take place in the normal indicative timescales; Cases where it is foreseeable that translations are required in respect of documents presented by an applicant, without which a fair and sustainable 11 P a g e

12 decision could not be made, where the necessary translations cannot foreseeably be obtained to allow a decision to take place in the normal indicative timescales. 2.3 Suitability Exclusion Criteria UK Border Agency policy is that certain individuals are unlikely to be suitable for entry or continued management in the DFT or DNSA processes. These persons are: Women who are 24 or more weeks pregnant; Family cases (families with at least one minor child, where that child is solely or principally dependent on the main applicant); Those who are unaccompanied asylum-seeking children, whose claimed date of birth is accepted by the UK Border Agency (see Age Dispute Cases section, below); Those with a medical condition requiring 24 hour nursing or medical intervention*; Those presenting with physical and/or learning disabilities requiring 24 hour nursing care*; Those with a disability, except the most easily manageable*; Those presenting with acute psychosis, e.g. schizophrenia, who require hospitalisation*; Those with an infectious/contagious disease which cannot be effectively and appropriately managed within a detained environment*; Those for whom there has been a reasonable grounds decision taken [and maintained] by a competent authority stating that the applicant is a potential victim of trafficking or where there has been a conclusive decision taken by a competent authority stating that the applicant is a victim of trafficking; Those in respect of whom there is independent evidence of torture. 48. Once a PVoT has received a positive reasonable grounds decision, they will be released from detention and their asylum claim will be processed as for non-detained applicants. 12 P a g e

13 The implications of a positive conclusive grounds decision 49. The Trafficking Convention requires (at article 14) that a positively identified victim of trafficking should be issued with a resident s permit where they are cooperating with the police or where their personal situation warrants it. It is UKBA policy to make a conclusive grounds decision supplemented by a further decision about whether to issue a resident s permit. 50. The APG states: Victims who are assisting with Police enquiries from UK Due to our obligations under the Council of Europe Convention on Action against Trafficking in Human Beings, we have agreed that in those instances where a victim has agreed to co-operate with the police, we will grant them a period of 12 months discretionary leave specifically to assist with police enquiries. This may be extended where it is felt necessary, e.g. where a criminal prosecution takes longer than expected and the police have confirmed/requested that an extension is required. Where the outcome is that the person is recognised as a victim of trafficking (VOT) and has agreed to assist with Police enquiries the Police need to make a formal request for the person to be granted leave to remain on this basis. Where DL is appropriate, it should be granted for exactly 12 months, which does not offer a right of appeal. If a victim who is cooperating with the Police also qualifies for another form of leave then the more generous grant of leave should be issued. Victims who qualify for another form of leave Victims whose stay in the UK may be necessary due to their personal circumstances, such as family and health needs, should be considered for Discretionary Leave (DL) in line with existing policy. Unless further information has come to light, it is not necessary to reconsider a grant of Discretionary Leave if this has already been considered in conjunction with a related claim, such as asylum. Victims who are not assisting with Police enquiries and are not eligible for a grant of leave 13 P a g e

14 Individuals who are conclusively found to be victims trafficking, but who are not assisting with Police enquiries and are not eligible for a grant of leave, must still be issued with a positive conclusive grounds decision. We would expect victims who do not have a right to remain in the UK to then return home giving due regard to Article 16(2) of the Convention which states When a Party returns a victim to another State, such return shall be with due regard for the rights, safety and dignity of that person... Challenges to trafficking decisions 51. There is no statutory right of appeal against a trafficking decision, although reconsiderations can be requested. The decisions can be challenged in the courts through judicial review. Where other applications have been made, and refused, trafficking issues may be raised in the Immigration Tribunal in relation to these appeals. September P a g e